the stories of one southern, class-straddling lawyer and her death row clients

Better Late Than Never, I Guess

Observers applaud as Henry McCollum is exonerated. Behind Mr. McCollum is I. Beverly Lake, former Chief Justice of the North Carolina Supreme Court and founder of the North Carolina Innocence Inquiry Commission.

I. Beverly Lake, former Chief Justice of the NC Supreme Court, announced this week that he has lost confidence in the fairness of the death penalty. In a blog post, he wrote

After spending years trying to instill confidence in the criminal justice system, I’ve come to realize that there are certain adverse economic conditions that have made the system fundamentally unfair for some defendants. These systemic problems continue to lead to the conviction of the innocent, as well as those individuals for whom the death penalty would be constitutionally inappropriate, regardless of the crime. Our inability to determine who possesses sufficient culpability to warrant a death sentence draws into question whether the death penalty can ever be constitutional under the Eighth Amendment. I have come to believe that it probably cannot. http://www.huffingtonpost.com/i-beverly-lake-jr/death-penalty_b_10027538.html?1463597343.

Lake, a conservative Republican, served on the Court from 1994-2006 and, thus, played a role in affirming the vast majority of death sentences of the 43 persons who have been executed by the State of North Carolina in the modern era.

I must admit having mixed feelings. Certainly, Lake’s change of heart inspires hope. For over twenty years, I have been one of many to tell the stories of the injustices underlying death sentences. Time and time again we have told these stories to judges and to governors in hopes of saving lives. Almost always those in power have been unmoved. Sometimes, I have found it hard to keep up the energy to fight. My clients and their families have helped sustain me. So have the lessons of history that successful fights against hate, prejudice, willful blindness, and stubborn devotion to senseless practices are long and painful. As Dr. Martin Luther King put it, “The arc of the moral universe is long, but it bends towards justice.” Lake’s announcement is indeed a good sign that the arc towards abolition of the death penalty is well bent .

And as a lawyer whose clients have, for the most part, been clearly guilty of taking another life, I am very pleased that Lake, founder of the North Carolina Innocence Inquiry Commission, is now extending his concerns beyond the problems with innocents being sentenced to death. As he writes,

Too much reliance is put on jurors to identify those who are the “worst of the worst.” As Chief Justice of the Supreme Court of North Carolina, I was responsible for assessing the personal culpability of defendants in capital cases to ensure that the punishment would be applied appropriately, so I understand just how difficult this task can be.

In order for mitigation evidence to be considered it must be collected and introduced at trial. In states where indigent defense systems are woefully underfunded, as it is in North Carolina, or where standards of representation are inadequate, this evidence regularly goes undiscovered.

Additionally, a number of impairments are difficult to measure. For intellectual disability, we can use an IQ score to approximate impairment, but no similar numeric scale exists to determine just how mentally ill someone is, or how brain trauma may have impacted their culpability. Finally, even when evidence of diminished culpability exists, some jurors have trouble emotionally separating the characteristic of the offender from the details of the crime.

Yet, I cannot help but also feel anger. What took you so long, Justice Lake? All of my executed clients were poor, suffered from mental illnesses and defects, and had ill-equipped lawyers. Why did you not see the light when we told their stories? Can you begin to appreciate the suffering your actions have caused? And, by the way, why do so many judges wait until they are off the court to finally say they can no longer support the death penalty?